Endeavor v. Discovery Operating on rehearing

Last April the Texas Supreme Court issued its opinion in Endeavor Energy Resources, L.P. et al. v. Discovery Operating, Inc., et al., No. 16-0155, construing a retained acreage clause in an oil and gas lease.  I commented that the opinion commented in dicta that, even if a lease allows the lessee to retain “tolerance acreage” as allowed by applicable field rules, the operator must “verify that additional acreage is actually necessary or required to achieve the maximum allowable,” quoting from a 2015 CLE paper by Phillip C. Mani.  On rehearing, the Court revised the language I quoted, so that it now reads as follows (click to enlarge):

So the court watered down its language somewhat.  The issue nevertheless remains an open one.